Doe on the Demise of Cowles v. Carter, 53 N.C. 381, 8 Jones 381 (1861)

June 1861 · Supreme Court of North Carolina

53 N.C. 381, 8 Jones 381

Doe on the demise of JOSIAH COWLES v. W. H. CARTER.

The act of 1856, chapter 14, does not authorise a defendant in ejectment, where the plaintiff has filed an affidavit that such, defendant entered as his tenant, to plead without giving security for costs by filing an affidavit that ho is unable, on account of his poverty, to do so.

This was an action of ejectment pending in the Superior Court of Yadkin, before French, J., Spring Term, 1861.

The action was brought in the County Court. The declaration having been served on the defendant, Carter, it was returned to the first County Court thereafter, whereupon he filed an affidavit that he was unable to give security for the costs of the suit on account of his poverty, and filed a certificate of his counsel that, in their opinion, he liad a good defense. The plaintiff, at the same time, filed an affidavit, stating that Carter had entered as his tenant, and that his tenancy had expired before the commencement of the suit, and moved the Court to require the defendant to file a bond for the costs of the suit, and to make affidavit that liis tenancy had not expired, before being allowed to plead, which motion was refused, and the defendant allowed to plead. The plaintiff moved the Court to call' the casual ejector, and that he might have judgment by default. This motion was also refused, and the plaintiff prayed an appeal, which was granted. In the Superior Court the same motions were made and refused, and the appeal from the County to the Superior Court ordered to be dismissed,, whereupon the plaintiff appealed to this Court.

Clement, for the plaintiff!

No counsel appeared for the defendant in this Court.

Manly, J.

"We domot concur with the Court below in its interpretation of the statute of 1856, chapter 11. Instead of of talcing away any security for the rights of plaintiffs, it adds another to those, then existing — or rather, it extends a part of the provision made for a class of ejectment cases in Rev. Code, chap. 31, sec. 48, to the action generally.

It is an unusual provision of our law to require defendants to give security for costs. Plaintiffs are only so required. When, therefore, the Legislature concluded to put defendants in ejectment upon the same footing with plaintiffs, in this respect, it was but fair and proper they should bo equalised in other respects, and be allowed, in case of poverty, to defend without giving security. This is all, as we suppose, that was intended by the act of 1856. It was to provide security for costs from defendants, in ordinary cases of ejectment, and not to interfere with the legislation in respect to such actions, when between landlord and tenant. It is hardly possible to suppose, if so material an interference had been intended, it would have been left by the Legislature to an implication uncertain in its nature.

If the statute of 1856, had simply required defendants in ejectment to secure costs, without adding th.e proviso in favor of poor persons, it would not have touched the 4Sth section of the Rev. Code, chapter 31-, ancl, the right of the landlord to require a bond for damages, as well as costs, would have remained. This would be because of a manifest intention to legislate, in the last enactment, for a class of cases not provided for in the former-. It follows, if that restricted application of the statute of 1856, would have been made, had it been left without the proviso, the proviso, itself, must also be understood in the same limited sense, and held to apply to ordinary cases of ejectment, and not to the action between landlord and tenant.

This Court being of opinion, then, that the statute of 1856, does not apply to actions of ejectment between landlord and tenant, holds, consequently, it was erroneous in the Court below to allow the defendant to plead without the affidavit and bond required by the Revised Code, chap. 31, sec. 48.

"Wherefore, let this opinion be certified to the Court below, to the end. that its judgment may he reversed, and proceedings had therein according to law.

Per Curiam,

Judgment reversed,